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PAUL JENNINGS HILL
9 Appellant,
IN THE SUPREME COURT OF FLORIDA
V.
STATE OF FLORIDA,
Appe 1 1 ee a
CASE NO: 84,838
CORRECTED ITIA L BRIEF OF AP PELLANT
MICHAEL R. HIRSH PRO HAC VICE P.O. BOX 329 NEW HAVEN, KENTUCKY 40051 (502)-549-7242
ROGER J. FRECHETTE PRO HAC VICE 12 TRUMBULL STREET NEW HAVEN, CT 06511 (203)-865-2133
ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CITATIONS
STATEMENT OF THE CASE AND FACTS
SUMMARY OF ARGUMENT
ARGUMENT
PAGE ( S 1 i t ii
iii, iv, v, vi
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5
ISSUE #1 5
THE TRIAL COURT'S FAILURE TO COMPLY WITH FARETTA V. CALIFORNIA, AND THE FLORIDA RULES OF CRIMINAL PROCEDURE RESULTED IN A VIOLATION OF PAUL HILL'S RIGHTS UNDER THE U . S . CONSTITUTION AND THE FLORIDA CONSTITUTION.
IS$UE #2
I.
A.
B.
BECAUSE THE J U R Y WAS IRREPARABLY AND UNFAIRLY PREJUDICED DURING VOIR DIRE, INAPPROPRIATE STATEMENTS DURING OPENING AND CLOSING ARGUMENTS, AND WAS IMPROPERLY CHARGED, HILL'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED.
ISSUE # 3
THE TRIAL COURT'S DENIAL OF HILL'S STATUTORY DEFENSE PREVENTED HILL FROM RECEIVING A FAIR TRIAL.
THE TRIAL COURT'S FAILURE TO FOLLOW FARETTA V. CALIFORNIA RESULTED IN A PATENTLY UNFAIR TRIAL. THE APPEAL MUST, THEREFORE, BE SUSTAINED AND A NEW TRIAL ORDERED 6
THE TRIAL COURT'S ERROR IS OF CONSTITUTIONAL PROPORTIONS 10
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C. THE TRIAL COURT FAILED TO OBTAIN A VALID WAIVER OF THE RIGHT TO COUNSEL
1. HILL WANTED TO BE REPRESENTED BY COUNSEL
2. THE TRIAL WAS A "COMPLETE TRAVESTY''
11. THE ERRORS COMMITTED DURING SELECTION MANDATE A NEW JURY SELECTION
111. HILL'S NON-PARTICIPATION IN THE TRIAL OF THE
A.
B.
IV.
v.
VI .
CASE
THE JURY WAS IMPROPERLY INFLUENCED
THE JURY WAS IMPROPERLY CHARGED
THE ERRORS COMMITTED AT TRIAL RESULTED IN A VIOLATION OF HILL'S RIGHTS UNDER THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. THEREFORE, THE APPEAL MUST BE SUSTAINED AND A NEW TRIAL ISSUED.
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4 6
FLORIDA STATUTES PROVIDE THAT ONE MAY USE FORCE, EVEN DEADLY FORCE, IN DEFENSE OF ANOTHER. THE REFUSAL OF THE TRIAL COURT TO ALLOW THIS DEFENSE CONSTITUTES A FATAL ERROR THAT MANDATES A NEW TRIAL 49
BECAUSE O F THE ERRORS COMMITTED DURING THE GUILT PHASE OF THE TRIAL, THE DEATH PENALTY CANNOT BE LEGITIMATELY APPLIED 53
CONCLUSION 60
ii
TABLE OF CITATIONS
CASES PAGE ( S 1
Beruer v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1349 (1935) 40
Caldwell v. Missississi, 472 US 320, 329, 105 S , Ct. 2633, 86 L. Ed. 2d 231 30, 32
CaDpetta v. State, Fla. 204 So. 2d 913, 918 6, 7, 8, 11, 12
Carnley v. Cochran, 369 U.S., 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962) 12, 13
Carter v. Kentuckv, 450 U.S. 288, (1981) 46, 47
Chestnut v. State, 578 So. 2d 27 (Fla. App. 5 Dist. 1991); 10
Civil Disobedience, in WALDEN AND OTHER WRITINGS 85 (J. Kautch ed. 1962) 57
Dixon v. State, 627 So. 2d 19 (Fla. Dist. Ct. App. 1993) 4 8
EddAncrs v. Oklahoma , 455 U . S . 104 (1982) 54
FARETTA V. CALIFORNIA, 422 U.S. 806, 1, 3, 4, 5, 6 , 45 L. Ed 2d. 562, 95 S. CT. 2525 (1978) 7, 8, 9, 10, 11,
13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 38, 39, 40, 45, 46, 52
Gardner v. Florida, 430 U.S. 349, 369 (1977) 55
Gilbert v. Florida, 487 So. 2d. 1185 (Fla. App. 4th Dist. 1986), 40, 50
Griffith v. Florida, 548 So. 2d. 244 (1989) 40, 50
J. DAVIS. AB ORTIQN AND THE CHRISTIAN (1984); H. Brown. 55
Johnson v. Zerbet, 304 U.S. 458 16
iii
TABLE OF CITATIONS (cont'd)
Johnston v. State, 497 So. 2d 863, 868 (Fla. 1986) 7, 10
Jones v. State, 584 So. 2d 120 (Fla. App. 4 Dist. 1991); 10, 17
Lakeside v. Or eaon, 435 U.S. 333, 336 47 a Locket v. Ohio, 438 U . S . 586 54
M. OLASKY, ABORTION RIGHTS: A SOCIAL HISTORY OF ABORTION IN AMERICA, 33 (1993) 55
5 Marburv v. Madis on, 5 U.S. 137 (1803)
Pall v. State, 632 So. 2d 1084 (Fla. Dist. Ct. App. 1994); 10
Peosle v. Velarde, (1980 Colo.) 616 P. 2d 104 33
Planned Parenthood of Southeastern Pennsvlvania v. Casev, U.S.
112, S. Ct. 2791 (1992) 52
Powell v. Alabama, 287 US 45, 53 S. Ct. 5 5 , 77 L. Ed. 158 8, 27, 39
Reillv v. State, Dept. of Corrections, 847 F. Supp. 951 (MD. Fla. 1994), 960 7 , 8
Roe v. Wade, 410 U.S. 113 (1973) 52
Skiper v. South Carolina 476 U.S. 1 (1986) 53, 54, 55
State v. Breton, 235 Conn 206, 249 30, 31 a State vv Judith A . Madsen, Pinellas Countv Court Case number 89-15146 (R 208-216) 24
State v. Skimer, 228 Conn 610, 626 28 a Stermer v. State, 609 So. 2d 80 (Fla. App. 5 Dist. 1992); 10
Taylor v. State, 605 So. 2d 958 (Fla. Dist. Ct. App. 1992); 10
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iv
TABLE OF CITATIONS (cont'd)
U.S. v. Berkowitz, 927 F. 2d. 1376 (7th Cir. 1991), 1383 a 9, 14
U,S. v. Harrison, 451 F. 2d 1013 (2d Cir. 1971) 9
U.S. v. McDowell, 814 F. 2d 245 (6th Cir. 1987) 13, 14
United States v. Moman, 346 U.S. 502, 98 L. Ed. 248, 74 S. Ct. 247 20
U.S. v. Mova-Gomez, 860 F.2d 706 (7th Cir. 1988), 732 0 15
U.S. v. Weltv, 674 F.2d. 185 (3rd Cir. 1982) 15
Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948) 15
Zal v. Stewe, 968 F. 2d, 924 (9th Cir. 1992) 24, 40, 50
CONSTITUTIONS
Fifth Amendment 4, 46
Sixth Amendment 4, 5, 10, 11, 26, 27
Art. 1 §l6 Fla CONST (a) 4, 5, 10, 14, 18, 24
a STATUTES
Section 772.012 Florida Statutes Ann. 49
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1
51
50
1
Section 775.07 Florida Statutes
Section 775.087 Florida Statutes
Section 775.021 Florida Statutes Ann. a Section 776.012 Florida Statutes. Ann.
Section 777.04 Florida Statutes
V
TABLE OF CITATIONS (cont'd)
Sections 782.04 Florida Statutes
Section 790.19, Florida statutes
Fla. R. Crim. P. 3.111(d) (2) AND ( 3 )
95 ALR. 3rd 172, 179
1
1
6 , 7, 8 , 10, 18, 19, 23, 27
28
Other Citations
HIS HOLINESS JOHN PAUL 11, Crossina The Threshold of HoDe, 205 (1994) 55, 56
Tom Shaffer, Jurisprudence in Liqht of the Hebraic Faith, 1 NOTRE DAME J. OF L . , ETHICS AND PUB. POL'Y 77, 86-87 (1984)
Letter From Birminqharn Citv Jail, in A TESTAMENT OF HOPE-THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 289 (J. Washington ed. 1986); H.D. Thoreau 57
Others as an Excuse f o r Homicide, 5 U. Fla. L. Rev. 58 (1952) 50
R. Dworkin, Life's Domain; An Arqument About Abartian, Euthanasia and Individual Freedom 3 (1993) 56
A. Statutorv Stu dv of Self-Defense and Defense of 9th ers as an excuse f o r Homicide. 5 U. Fla. L. Rev. 58 (1952) 49
STRINGFELLO. FRE E IN OBEDIENCE (1964); M.L. Kinq 57
SWORDS INTO PLOWSHARES: NONVIOLENT DIRECT ACTION FOR DISARMAMENT ( A . Laffin t A. Montsomerv ed. 19871 [hereinafter SWORDS INTO PLOWSHARES1 57
The Fetus and P ersonhood, 1975 HUMAN LIFE REVIEW 41 55
yhat the Sunreme Court Didn't Know, I975 HUMAN LIFE REVIEW 5; J. Montgomery 55
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STATEMENT OF THE CASE AND FACTS
The defendant Paul Jennings Hill (hereinafter IIHillll) was
charged in a superceding grand jury indictment with premeditated
design to effect the death of John Bayard Britton and James Herman
Barrett, in violation of Sections 782.04 and 775.07, Florida
statutes, and unlawfully and knowingly attempting to form a
premeditated design to affect the death of June Griffith Barrett,
in violation of Sections 777.04, 782.04, and 775.087, no Florida
statutes, and in unlawfully, wantonly, or maliciously shooting at
Or into an occupied vehicle, in violation of Section 790.19,
Florida statutes, said crimes allegedly taking place on June 29,
1994, the superceding indictment dated August 9, 1994 (R 4,5).
On September 26, 1994 a motion for a Faretta hearing and
motion to withdraw were filed, (R 15,16)" After hearing, both
motions were granted on September 30, 1994 (R 96). On October 13,
1994 a "suppXernental1l Faretta hearing took place (R 100-103).
The State filed a motion in limine to preclude the
justification defense on October 14, 1994 (R 14). Hill filed a
memorandum in opposition (R 117-200). The State filed a reply
memorandum (R 201-216). Hill was not allowed to offer any evidence
in support of his motion. The Faretta hearings reveal Hill was not
advised that his legal defense required a factual predicate,
despite the State knowing that Hill was relying upon the
justification defense (TR 221; R 109).
When the State filed its memorandum on October 24, 1994, and
argued it the same morning, Hill asked the Court (R 218.-220, A 101-
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103) :
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I'd like to ask the Court to allow an out- of-state attorney, Mr. Vince Heuser, to speak to this incident motion against the State's Motion in Limine. And if you grant that, I'd like for him to be appointed standby counsel for me during my trial ... I'm sure if you'd be willing to consider his credentials, I'm sure you'd find them in order ... I'm sure the Court's interested in hearing as much argumentation from the defense as possible.
Attorney Heuser filed a motion to appear pro hac vice to argue
the justification defense and a motion to file an Amicus Curiae
Brief ( R 232-237). Both were opposed by the State (R 220-226).
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Hill was denied the counsel of his choice and did not argue the
motion ( R 234) He then stated he would rest on the memorandum (R
227). Without the benefit of oral argument by Hill, the Court
granted the State's motion in limine on October 26, 1994 (R 234).
Voir dire selection immediately commenced.
The trial court's failure to comply with either Faretta or the
Florida Rules of Criminal Procedure resulted in an unfair trial of
constitutional magnitude. This is abundantly clear through each
phase of the trial.
Hill asked no questions of any veniremen; he objected to no
questions the State asked the veniremen; he made no opening
statement; he asked no questions on cross-examination; he objected
to no exhibits; he attempted to state to the Court that he wanted
to present the justification defense (TR 566). Hill could not
understand, nor was he told, why he was not permitted to do so.
In response to the Court's critical question (TR 568), Hill
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rested without offering any evidence. Indeed, Hill's entire
defense filled less than one page of that transcript. Hill filed
no requests concerning the charge; he took no exceptions to the
charge (TR 634); he waived his opening argument in the closing
argument of both portions of the case; so, too, he waived his
rebuttal argument to the jury during the guilt phase of the trial
(TR 598).
Hill's only substantive comment to the jury-and this was after
an objection which was sustained and later reversed-consisted of
sixty seven words (TR 725). Without a factual foundation, these
words were meaningless. Further, there was no evidence to support
what Hill said. His Itsound bite" had to make the jury wonder if
Hill was even talking about the case. It was a logical statement
to Hill, but fatally prejudicial before the jury.
The jury deliberated less than an hour on the guilt phase of
the trial, (TR 598) and an extremely short time on the penalty
phase of the case. Hill was found guilty of two counts of first
degree murder, guilty of attempted first degree murder with a
firearm, and guilty of shooting into an occupied vehicle, as
charged in the indictment (R 258-261). The death sentences are
consecutive tothe federal life sentences imposedthe previous week
( R 331).
STJMMARY OF THE A R G ~ N T
Faretta v. California, 4 2 2 U.S. 806 (1978), establishes the
scrutiny that a trial court must apply before allowing a defendant
to represent himself. The court is obligated to conduct an inquiry
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that would support a knowing, intelligent, and voluntary waiver of
counsel, taken in light of the complexity of the charges and
severity of the possible punishment.
The failure to comply with the Faretta requirements resulted
in a Violation of the constitutional rights of Hill. Specifically,
the Fifth and Sixth Amendments to the United States Constitution
and Article I of the Florida Constitution provide that a defendant
be able to provide a defense Itas we know it." Because the Faretta
requirements were not satisfied, the trial was plagued with a
series of fatal errors.
Florida Statutes provide that one may use force, even deadly
force, to protect himself or another from an imminent, serious
harm. Hill attempted to use this statutory defense; however, the
State filed a motion in limine which was granted by the trial court
without the benefit of any oral argument. As a direct result of
the inadequate Faretta inquiry, Hill failed to provide the
necessary factual predicate for the defense that he sought to
offer.
From voir dire to receiving their instructions from the judge,
the jury was improperly influenced. Improper, irrelevant, and
highly prejudicial questions were asked of the veniremen. Hill
offered no objections or questions of his own. Although Hill was
denied access to his statutory defense, the jury was instructed on
that law. Hill offered no objections or instructions of his own.
Because Hill was prevented from offering this defense, there was
no evidence in the Record to coincide with this disconnected
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instruction.
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rights of Paul Hill, the appeal must be sustained and the case
remanded for a new trial.
ARGUMENT
I. ISSUE I
THE TRIAL COURT FAILED TO COMPLY WITH THE REQUIREMENTS SET FORTH BY THE UNITED STATES SUPREME COURT IN FARETTA V. CALIFORNIA, U . S . CONSTITUTION, THE FLORIDA CONSTITUTION AND FLORIDA RULES OF CRIMINAL PROCEDURE. ACCORDINGLY, THIS APPEAL MUST BE SUSTAINED AND THE CASE REMANDED FOR A NEW TRIAL.
The Sixth Amendment safeguards the rights of the criminal
defendant.
[B]y an imparital jury . . and to be informed of the nature and the cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for h i s defense.
U.S. CONST. amend. VI (emphasis added)
Although the U.S. Constitution provides the minimum levels of
protection that the State must provide, the Florida Constitution
further provides:
In all criminal prosecutions the accused shall . . .have the right. . . to confront at trial adverse witnesses, to be heard in person, by counsel or both. . .
FLORIDA CONSTITUTION, art. I, §16(a).
It has long been understood that constitutions lack the prolixity
of statutes, Marburv v. Madison, 5 U.S. 137 (1803). Particular
application of constitutional provisions fall within the purview
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of statutes, rules, and case law.
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Of particular relevance to the present appeal are the Florida
Rules of Criminal Procedure:
A defendant shall not be deemed to have waived the assistance of counsel until. . .a thorough inquiry has been made into both the accused's comDmehension and understanding waiver.
No waiver shall be accepted if it appears that the defendant is unable to make an intelliaent and understanding choice because of. . .the nature and comDlexitv - of the case....
***
Fla. R. Crim. P. 3.lll(d)(2)(3)(emphasis added).
Whether a defendant may represent himself is a matter of
constitutional magnitude and, as in the present case, a question
of life and death. Fortunately, the United States Supreme Court
has provided direction on this difficult question. Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L. Ed 2d 562 (1978),
articulates the duty of the trial court when confronted by the pro
se defendant.
A. THE TRIAL COURT'S FAILURE TO FOLLOW FARETTA V. CALIFORNIA RESULTED IN A PATENTLY UNFAIR TRIAL. THE APPEAL MUST, THEREFORE, BE SUSTAINED AND A NEW TRIAL ORDERED.
The appeal must be sustained because Hill did not have the
capacity to make an intelligent and understanding waiver due to the
nature and comDlex itv of the justification defense.
Faretta, Id., speaks of competent waiver and Cametta v.
State, Fla. 204 So. 2d 913, 918 uses it as a determining factor:
'I.. .or in any case, where the Gomplexitv of the crime was such that in the interest of justice legal representation was necessary". [Emphasis added]
0 And further on that page:
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In short, the defendant would not fall into t h a t category of persons who would be deprived of a fair trial if allowed to conduct their own defense, nor is the crime of which the defendant was accused of such comDlexitv that in the interest of justice, legal representation is necessary. [Emphasis added]
The justification defense is llof such complexity" it requires
that the defendant be represented by counsel.
Johnston Y. state, 497 So. 2d 8 6 3 , 868 is also instructive.
The trial court in that case held "[tlhat Johnston would not
receive a fair trial without assistance of counsel". The Court
approvingly cites Carmetta, supra, and the analysis of Fla. R.
Crim. P 3.111 (d) ( 3 ) . This is the precise issue in the instant
proceeding.
The complexity of Hill's justification defense is beyond the
knowledge of a well-educated law student; even further beyond one,
like Hill, who is completely untrained in legal matters. Although
law books were available in the prison, the intricacies of his
defense require skilled legal research, preparation, planning, and
compulsory attendance of witnesses and exhibits. Hill had none of
those things.
Reillv v. State, DeDt. of Corrections, 847 F. Supp. 951 (MD.
Fla. 1994), 960, commenting upon Faretta, suma, cites Johnston v.
State, 497 So. 2d 863, 868 (Fla. 1986), and in applying Fla. R.
Crim. P. Rule 3.111 (d), approvingly adopts the "experience, the
nature and comslexitv of the case, and a defendant's knowledge and
experience in criminal proceedings" (emphasis added) as major
a factors in the issue of self representation.
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Judge Kovachevich stated in commenting on Reillv that Reilly
had read numerous law books and statutes, but Reilly was unable to
apply the Jaw to the facts. Id. 960. Reilly was f a r better
prepared than Hill.
Hill could not prepare the legal case, and therefore could not
lay the requisite evidence before the Court to proceed on the
justification defense. Reillu, supra, approvingly cites Caaoetta,
supra, on the holding that the complexity of the case weighs
heavily on the waiver issue.
Hill's case is far more damaging and complex, both legally and
factually than Reillv. Accordingly, the trial court must be
reversed.
Powell v. Alabama, 287 US 45, 53 S. Ct. 55, 77 L. Ed. 158,
emphasizes that the right to prepare for trial is essential. Hill
had no opportunity to prepare his complex defense. Hill had no
lawyer. Hill was in jail. Hill could not research his case. He
could not investigate the case. He had no one to tell him how to
utilize compulsory process. Hill obtained no medical, scientific,
actuarial, psychiatric or lay witnesses to establish the factual
predicate of the only defense that he wanted to introduce.
A s the Faret ta hearings clearly demonstrate, Hill was not made
cognizant of what he could or should do. This is not a case in
which "...the right in an adversary criminal trial to make a
defense as we know it" was afforded. He was denied that right
because both the Faretta and Fla. R. Crim. P. 3.111(d) requirements
were violated. 0
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U.S. v. Berkowitz, 927 F zd 1376 (7th Circ. 1991) is also
instructive because of the skill that Berkowitz possessed.
Berkowitz actively participated in discovery; he represented
himself in prior civil actions; he had prior experiences with
judicial proceedings. His trial conduct demonstrated a fairly
sophisticated understanding of the judicial process, as
demonstrated by several evidential objections made by Berkawitz
that were sustained. In addition, he was able to cross-examine the
government's witnesses on the subtleties of the best evidence rule.
None of those positive attributes of Berkowitz are present in
Hill.
The pitfalls of going alone resulted in Hill, in essence,
entering an extended plea of nolo contendere. He was denied both
the knowledge to and the right to present a defense, and .the
right in an adversary criminal trial to make a defense as we know
it," as articulated by Faretta.
U.S. v. Harrison, 451 F. 2d 1013 (2d Cir. 1971) comments on
the fact that even a lawyer - who is not familiar with criminal law
cannot intelligently and knowingly waive that essential
constitutional right to a lawyer, particularly when the case was
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so complex.
Clearly, Hill lacked the training and ability to prepare and
defend his case as Hill was incarcerated from July 29, 1994 through
the date of trial. Hill was unable to legally or factually prepare
his case. Reading cases does not a lawyer make. Hill could not
know what facts are required by law to establish the basis f o r his
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justification defense.
The complexity of Hill's defense mandated that the trial court
require counsel. Hill had two attorneys in Court who wanted to
try the case, and that was made known to the Court (TR 661-664).
Certainly, Chestnut v. State, 578 So. 2d 27 (Fla. App. 5 Dist.
1991); Jones v. State, 584 So. 2d 120 (Fla. App. 4 Disk. 1991);
Taylor v. State, 605 So. 2d 958 (Fla. Dist. Ct. App. 1992); Stermer
V. State, 609 S o . zd 80 (Fla. App. 5 Dist. 1992); Pall v. State,
632 So. 2d 1084 (Fla. Dist. Ct. App. 1994); all stand for the
proposition that both Faretta and Fla. R. Crim. P 3.111 (d) require
that the waiver be Itknowingly and intelligently" made, and that the
defendant have the requisite Itcomprehensiontt to have the capacity
to enter into a valid waiver. It is not a mechanical waiver.
Johnston, supra, articulates the ultimate conclusion: the
trial court correctly concluded that Johnston would not receive a
fair trial without the assistance of counsel. Neither did Hill.
B. THE TRIAL COURT'S ERROR 1s OF CONSTITUTIONAL PROPORTIONS
''In short the Sixth Amendment constitutionalizes the right in
an adversary criminal trial to make a defense as we know it.''
Faretta at 8 2 0 [Emphasis added]. In short, Paul Hill was unable
to make that defense.
A person is permitted to proceed pro se because:
In all criminal prosecutions the accused shall ... have the right ... to confront at trial adverse witnesses, to be heard in person, by counsel or both ...,
Art. 1 §l6 Fla CONST(a), which has been codified and qualified by
a Fla R. Crim. P. 3.111 (d). The trial court violated the Florida
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Constitution because it would not let Hill argue. Because there
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was an inadequate Faretta inquiry, the trial court violated Hill's
inherent right to counsel of his choice. Faretta requires the
waiver must be made with comprehension and with an intelligent and
understanding choice and an understanding of the nature and
complexity of the case. Hill did not vlvoluntarily and
intelligentlyf1 elect to proceed without counsel, as Faretta
requires supra, 808.
The trial court violated the conditions set forth in Faretta,
Id., by permitting Hill to proceed without counsel. Hill did not
Woluntarily and intelligently" elect to proceed without counsel,
- Id. 808. Hill did not make I t . .an intelligent and knowing waiver
of his right to the assistance of counsel..", Id. 810, 8 3 6 . Hill
did not "...competently and intelligently waive his Constitutional
right to assistance of counsel..Il; Id. 815. Hill was not
permitted: Itto make . .full Defense, by counsel learned in the law. It
U. 825; Hill did not "knowingly and intelligently" forego those
benefits; m., 836. In short, the foregoing resulted in the loss by Hill of his
Sixth Amendment right IIIn short, the Amendment constitutionalizes
the right in an adversary criminal trial to make a defense as we
know itr1, Id. 819.
State v. CaPpetta, supra, 918, in language that foreshadawed
the presentation of the justification defense in the instant case,
reuuires counsel for Hill:
a In short, the defendant would not fall into that category of persons who would be deprived
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of a fair trial if allowed to conduct their own defense, in short.. .nor is the crime of which the defendant was accused of such complexity that in the interest of justice, legal representation is necessary.
Paul Hill was charged with four felonies, including two murder
charges. He is under a sentence of death. Obviously, the case
rewires legal representation because the crime of which Hill is
accused is "the complexity of the crime was such that in the
interest of justice, legal representation was necessary." CaDetta,
918.
Carnley v. Cochran, 369 U.S., 506, 8 2 S. Ct. 884, 8 L. Ed. 2d
70 (1962) involved the prosecution of a defendant under a statute
which was subject to a complex constitutional question. Referring
to the trial judge, the Carnley Court held that such a complex
issue does nat permit a person to be tried without defense counsel:
He did not fully apprise the petitioner of vital procedural riqhts of which layman could not be expected to know but to which defense counsel doubtless would have called attention. The omissions are significant.
Carnlev, at 510-511. (Emphasis added)
In Carnlev, supra, 511, there was no examination of
perspective jurors on voir dire; no requested jury instructions;
no objections were taken during t h e whole trial; there was no
opportunity to gather factual material or even to investigate the
facts because of carnley's incarceration; and Carnley failed to
challenge perspective veniremen, all of which is commented upon
adversely in the concurring opinion.
Hill was unable: 1) to question on voir dire concerning
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publicity: 2) to explore the need for change of venue; 3 ) to
effectively question the veniremen with all the attendant benefits
of that questioning; or 4 ) effectively evaluate whether to take the
stand. Further, Hill was precluded from an effective legal
presentation of his defense; from obtaining evidence by legal
process to protect the record; and inquiring about defending
himself. Hill's shortcoming are shown by his inability to object
the State's questioning of veniremen, his inability to follow up
responses elicited by the State, his failure to probe individual
veniremen's knowledge of this heavily media covered event, his
inability to both study and emit body language from and to
veniremen, to plan a defense, to prepare the defense with witnesses
and process, to object to questions by the State concerning church
attendance and abortion, and he failed to peremptorily challenge
jurors nos. 618, 630, 312, 441, 575, 552, 239, 146 and probe juror
362.
These transgressions in Carnlev, supra, pale in comparison to
As the criteria in Carnlev were not satisfied, the present case.
neither are they satisfied in the instant case.
Although Carnley, a, predates Faretta, the logic in Carnley taken in light of the Faretta mandate, shows the complete failure
of Faretta compliance. There was no "intelligent, knowing waiver
of his rightt1 supra, 810; no "competently and intelligentlyt1
exercised waiver, supra, 815.
U.S. v. McDowell, 814 F. 2d 245 (6th Cir. 1987), approvingly
cites Camlev, supra and, comments upon the guidelines for district a
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judges from the Benchbook for United States District Judges, a
portion of which is reproduced in the appendix. ( A 10, 11).
Significantly, McDowell holds:
There was thus no occasion in Faretta to lay down detail guidelines concerning what test or lines of inquiry a trial judge is required to conduct in order to determine whether a defendant has 'knowingly and intelligently' chosen to forego the benefits of counsel.
Id. 2 4 9 . McDowell was not reversed. A defendant must warve I1w th
his eyes wide open1'. Because Hill did not make a "knowingly and
intelligently1I choice to forego the benefit of the only defense
which he intended to prove, his waiver was invalid.
Accordingly, Faretta admonishes:
For it is surely true that the basic thesis of those decisions is that the help of the lawyer is essential to assure the defendant a fair trial.
Faretta, at 820. Further, a mechanical waiver of the right to
counsel does not waive Art. I, 516, Fla. CONST(a); Fla. R . Crim.
P. 3,11l(d); and the Faretta requirements:
We do not suggest that this right arises mechanically from a defendants power and to waive the right to the assistance of counsel.
Faretta, 820, n. 15. Because there is no satisfactory waiver of
the constitutional requirements, Hill's case must be remanded for
a new trial.
C . THE TRIAL COURT FAILED TO OBTAIN A VAI,ID WAIVER OF THE RIGHT TO COUNSEL
Faretta is not satisfied. That is the critical constitutional
shortcoming in the instant case. U.S. v. Berkowitz, 927 F. 2d.
1376 (7th Cir. 1991), 1383 knowingly predicted:
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The appeal will almost inevitably revolve around whether or not the defendant was fully aware of his right to counsel and the benefits he receives because of that right and the pitfalls of going alone.
U.S. v. Weltv, 674 F.2d. 185, (3rd Cir. 1982), articulates
that if no reasan is given f o r the defendant's dissatisfaction
with his lawyer, or if the defendant wanted to proceed pro se, the
Court has a duty to inquire into the basis for the defendant's
action. The waiver cannot be mechanically applied. In Welty the
criteria was mechanically applied and the conviction was reversed,
despite the fact that welty had tried two cases pro s e , had been
a defendant in two cases in which he was represented by counsel,
and he had taken part in other proceedings.
Weltv, supra, 187 requires:
Since the decision to proceed K)TO se involves a waiver of the defendant's sixth amendment sight to counsel, the district court then has the responsibility of insuring that any decision by the defendant who represents himself is intelliqently and commtentlv made. (Emphasis added)
U.S. v. Mova-Gomez, 860 F.2d 706 (7th Cir. 1988), 732 states:
The trial
The Supreme Court has not yet defined precisely the extent of the Faretta inquiry. But cf, e s , 332 U.S. 708, 724, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948) (plurality opinion of Black, J.) ('!To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the ranue of allowable D unishments thereunder, pa ssible defenses to the charges and circumstances in mitisation thereof, and all other facts essential to a broad understanding of the whole matter.") (Emphasis added).
court's inquiry was insufficient and does not satisfy the
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Faretta requirements. As Mova-Gomez explains: Whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. Johnson v. Zerbet, 304 U.S. 4 5 8 . . .
As the Record clearly shows the waiver requirement is not
satisfied.
Black's Law Dictionary-5th Ed defines voluntary as ttelects to
do so, done freely without compulsion, controlled by
Intelliaentlv is defined as Ithaving or shown intellect, which is
the power of knowing, the capacity for knowledge, the ability to
learn. It
TO satisfy these two requirements, Hill would have had to know
what it was that he was waiving. He would have to know: 1) there
is a legally cognizant defense; 2) that a factual basis would have
to be laid for that defense to be made; 3 ) that facts and law had
to be investigated, prepared, marshalled, and prosecuted; 4) the
availability of compulsory process to obtain witnesses and
documents; 5 ) what kind of jurors he wanted; and, 6 ) how to plan
the presentation of that defense to convince a jury. Only after
that ttintelligenttl requirement is satisfied, may Hill voluntarily
"waivett. Because there is no evidence of the ttintelligentlytt
requirement, ttvoluntarytt cannot be satisfied.
If one doesn't know what one is gaing to waive, the act of
waiver cannot be voluntary. Implicit in the word ttwaivertt are the
concepts of doing something freely, without compulsion, and
controlled by the will. An unknowing waiver is no waiver at all.
It cannot be "intelligent. It It is not ttvoluntary.tt Therefore,
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neither prong of Faretta is satisfied.
This is what the Faretta Court had in mind when it combined
"intelligent11 with llknowingly.ll Id. 836. Black's, supra, defines
the lvknowinglyll with knowledge; conscientiously; intelligently;
wilfully; intentionally.Il It is inconceivable that one could
llknowinglyll waive anything about which he has no knowledge. In the
instant case that Hill had no knowledge of how to present the
justification defense, nor was he asked by the Court if he intended
to present this or any other defense.
Statements by Hill cannot constitute a valid waiver because
the required Faretta criteria is not present in the Record. Hill
could not "knowingly and intelligentlyll waive. He had neither the
"cornprehensiont* nor the "capacityf1 to make an intelligent and
understanding waiver "because of the nature or complexity of the
case." The waiver is not valid because Hill was not told, nor did
he know, the factual predicates necessary to assert the
justification defense. The Court made it clear: Faretta means
what it says. The right to waive does not arise mechanically,
Faretta, n. 15. There is no waiver in the instant case.
Jones v. State, supra, 121-122 in dicta permits the State to
inquire into Faretta issues (as was done in the instant case). The
State then assumed the duty to delve into the Faretta requirements
and to undertake them in a reasonable and fair manner consistent
with a prosecutor's oath to seek the truth.
The State knew that Hill was relying on that defense (R 221)
and successfully sought to preclude that defense. The State,
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however, did not alert Hill to the requirement that he had to present a factual basis for the defense. Therefore, there was
neither a *'voluntary and intelligenttt exercise of a waiver by Hill,
nor was there a relinquishment of that right. The Faretta
requirement, supra, 815 that Hill tt...competently and intelligently
waive his constitutional right to assistance of counseltv is not
satisfied either.
Competent means Ivduly qualified; answerinq all reauirements;
having sufficient ability or authority; ... I t None of the
requirements as to the defense Hill should have proffered have been
satisfied. It can hardly be suggested that he ttanswered all waiver
requirements.tt Similarly, if he does not know, nor was he asked,
what defense, if any, he was going to offer, or wanted to offer,
then one cannot say that Hill had sufficient ability to put on that
defense. Certainly, in the instant case, Hill did not have the
ability to put on that defense, to question veniremen, and suffered
from other shortcomings of a pro se defendant.
The voluntary, knowing, intelligent, requirement of Faretta,
the Art. I, 916, Fla. CONST(a), and Fla. R. Crim. P 3.111(d) have
been violated. In addition to the catastrophic inability It..to
make a defense as we know it!'.
In Faretta, Id. 837, the trial judge warned Faretta that it
was a mistake not to accept the assistance of counsel and that
Faretta would be required to follow all the ground rules of trial
procedure:
We need make no assessment of how well or poorly Faretta had mastered the intricacies
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af the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical leual knowledue, as such, was not relevant to the assessment of his knowins exercise of the rjuht to defend himself. (Emphasis added)
These technical comments have no bearing on the instant case. The
reason that Faretta was not satisfied in the case at bar is that
Hill's fundamental right, the constitutional right tt...t~ make a
defense as we know itt1 and emphasized by the Fla. R. Crim. P.
3.111(d)t was violated.
The failure in the instant case is not because of the
intricacies of the hearsay rule or the code provisions which
govern challenges to voir dire. Rather, the failure to tell Hill
that if he had a fundamental defense that he wanted to articulate,
then he had to prepare the factual basis to introduce it.
Hill was not apprised of the hazards of self representation.
The trial court had a duty to explain to Hill that he would have
to marshal1 the facts to apply to the law to present his legal
theory. In addition, the court should have told Hill that his
incarceration would make it impossible, to accomplish what he
wanted. That failure by the court is fatal.
In short, the trial court's failure to comply with Faretta
requirements caused exactly the situation that Faretta intended to
prevent. A s a result, Hill's appeal for a new trial must be
granted.
The Record demonstrates that Paul Hill did not knowingly,
voluntarily, and intelligently waive his right to counsel.
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Further, t h e Record proves that he did not have a Comprehension of
the nature or complexity of the case. There is no evidence of
Hill's valid waiver of his constitutional right to the assistance
Of Counsel, so that he might Itmake a defense as we know it."
Clearly, United States v. Moruan, 346 U.S. 502, 98 L. Ed. 248, 74
S . Ct. 247, places the burden of proof upon the State to prove an
intentional relinquishment of that right. The State cannot show
it because it is not there.
In response to the Court's inquiry (R 50-55), Hill
acknowledges that both Attorney Loveless and Attorney Murray are
experienced qualified advocates. In further response to the
Court's inquiry, Hill states that there are a variety of reasons
which Hill does not want to go into. Despite his fear and
trepidation, he wants to pursue the direction of self-
representation. Unbelievably the Court states ( R 53): I l I don't
want vou to be SDecific, because obviously vou - don't want to be
mecific with me." The trial court had an affirmative duty to be
specific .)
Except to say that his purpose is to glorify God, Hill states
that he knows the legal system is very complex and that he has no pretense of understanding American jurisprudence. Hill also
admits that his experience is limited to a church trial, so he
could muddle around. H i l l acknowledges that he is inhibited by
trying to prepare the case in jail ( R 58-60); that he knew a few
Latin phrases; that he is a poor typist, ( R 71); and that he knew
there was a library in the jail but had never used it (R 72).
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Indeed, the State followed up the statement (R 52) that Hill
did not want to discuss why he did not want the public defender to
represent him. The prosecutor asked that if Hill wanted a lawyer,
would he be comfortable with Attorneys Loveless and France.
Interestingly, the answer by Hill was cut off by the State. That
answer is "with the reservations they have expressed that...!! and
the State never permits, nor does the Court, Hill to finish his
response, except, (R 8 2 ) H i l l states in response to the question
of whether there is some other lawyer that cauld better represent
you, Hill states vvItts entirelv sossible.lI The Court should have
inquired of Rill as to what he meant. Both Faretta and the Rule
require that inquiry.
In contravention to the federal rule, the judge urged, and
the State questioned, Hill. Particularly, Hill was asked whether
he knew how to lay a foundation for questions and how objections
were made and sustained. When Hill said that he understood, he
was instructed that he would be treated as any other litigant.
This does not satisfy Faretta. This does not constitute a valid
waiver of counsel.
Two weeks prior to the instant case, Hill was convicted for
the same incidents in the federal court where the justification
defense commented on by Judge Vincent ( A 1-9). The State and the
trial court had complete knowledge of that trial and the
preclusion of the justification defense. Yet, not a question was
posed to the veniremen if they had any knowledge of the federal
court trial which took place in the same area immediately before
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the instant case. The State and the court had first hand
knowledge that Hill intended to rely upon the justification
defense. The Court had a duty to obtain a meaningful, voluntary,
knowing, intelligent, and comprehensive waiver of Hill's right to
counsel and to explain to Hill the fundamentals of providing a
factual basis to present a legal defense. Hill was not informed,
neither did he understand that he must introduce facts in order to
provide the foundation to utilize his legal concepts. Nowhere in
the Record is Faretta satisfied.
1. HILL WAWTED TO BE REPRESENTED BY COUNSEL
That Hill wanted counsel is proven by Hill's request to the
court to have Attorney Heuser represent him (R 248); at a later
time, that Attorneys Heuser and Hirsh represent him, (TR 661-664:
A 121 - 124), the motion by Attorney Heuser to appear pro hac
vice, (R 232, 233) the motion by Attorneys Hirsh and Heuser to
file an Amicus Curiae Brief (R 368, 3 6 9 ) , and the request by Hill
(TR 661-664; R 218-220; A 121 - 124) that those attorneys
represent him in the case. Hill stated, that he did not want to
proceed without counsel and counsel had been present in Court the
entire time (TR 661-664; A 121-124). Clearly, Faretta is not
satisfied.
Additionally, in the Faretta hearing before the Honorable
Elzie S. Sanders, Circuit Judge, on May 16, 1995, page 13 of that
transcript, Judge Sanders inquired whether an appellate lawyer
should represent Hill to allow the Court to discharge its
constitutional obligation to see that the death penalty is carried
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out fairly and pursuant to law.
permitted to argue that before this Honorable Court.
Hill responds that he will not be
Although Judge Sanders' offered comments about the
disadvantages of self-representation, that generic inquiry does
not raise the issues required by Faretta. Hill did not understand
cannot present the defense that he wants to present, indeed, the
defense he firmly believes God wants him ta present. It must be
spelled out to Hill. It was not. Thus, there can be no
compliance with Faretta and Fla. R. Crim. P. 3.111(d).
Further, transcript 18, Judge Sanders speaks of the Supreme
Court wanting assurance that the trial judge had the benefit of
the adversarial process. There was no adversarial mocess before
the trial iudqe. Judge Bell admitted that when he said: I t M r .
Hill is doing everything that he can to make it nonadversarial."
(TR 687; A 146)
Again, page 20, as late as May 16, 1995 Hill had not had any
legal training on the justification defense. Most interestingly,
at page 23, Judge Elzie S . Sanders said, referring to attorneys
from other jurisdictions:
You know, the location is not important, but do you routinely..or you have access to other attorneys that could counsel with you and advise you ...
That is the issue. It is abundantly clear that Hill was incapable,
because of the incomprehensible and overwhelming details of
presenting the affirmative justification defense.
Judge Vincent ( A 1-9) succinctly spells out that problem,
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which is proof that one cannot satisfy Faretta or the Fla. R. Crim.
P. 3.111(d), so as to constitute a valid waiver. Judge Vincent is
not a layman. Paul Hill is. Paul Hill needed counsel. Paul Hill
asked for counsel. Paul Hill did not get counsel.
2- THE TRIAL WAS A "COMPLETE TRAVESTY"
The trial court should not have allowed Hill t o proceed pro
se because the criteria articulated in Faretta, Art. I, 816, Fla.
CONST(a), and Fla. R. Crim P. 3.111(d) were not satisfied. When
the State filed its Memorandum in Support of its Motion in Limine,
it cited Zall v. SteDpe, 968 F. 2d, 924 (9th Cir. 1992), and it
appended to its memorandum state v. Judith A . Madsen, Pinellas
Countv Court Case number 89-15146 (R 208-216), both of which
specifically permit, indeed require, evidence in support of the
justification defense.
The Court states ( R 228) that the Court received memoranda
last week, butthe State's brief was stamped in at 9:33 on October
24, 1994 (R 201) with the certification that it was hand delivered
to the defendant on October 24, 1994 (R 207), the date the parties
appeared in open Court (R 217). On that day Attorney Heuser filed
a motion f o r appearance pro hac vice which w a s objected to by the
State, Heuser was not permitted to help Hill, and in response to
the Court's inquiry if he wants to respond, Hill states:
No, sir. Since you've disallowed the attorney to speak f o r me, I'll just let my brief speak for itself. (R 226, 227; A 109, 110)
The aforesaid justification defense colloquy took place on the very
date that the State's brief was filed ( R 221, lines 15-19; A 104).
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This unfair procedure is difficult enough fo r a seasoned lawyer,
but is insurmountable for an unrepresented layman.
By not requiring Hill to have counsel, the Court permitted,
as articulated by Attorney Loveless, the trial to be a ttcomplete
travestytt (TR 680-688; A 139-146). Indeed, the trial court
admitted that if Hill were represented, there:
I'm sure that there has been some things in the first stage of this proceeding that you might have objected to. more than happy to hear arguments from both sides and make rulings (TR 684; A 143).
And I would have been
Further the court stated:
and I understand that during the course of the trial, that I have looked over there and you have been paying attention and I know that there have been times when if you would have been trial counsel, that you would have been on your feet ... (TR 686; A 145).
Within two days of the denial of Hill's request, the trial
court granted the State's Motion in Limine without the benefit of
oral argument. Again, an insurmountable problem for a pro se
defendant. The same impediments present in the trial court are
present in the hearing before Judge Sanders who took judicial
notice of the Faretta material in the trial court. This is
particularly so in view of lines 23 through 25 on page 13 of that
transcript. In response to the inquiry by the judge of the
constitutional obligation of the court to see that the conviction
& the penalty are carried out fairly and pursuant to law, Hill
states :
If that were, in fact, an issue that needed to be addressed by myself, I'm certain I could address it, Your Honor.
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Therein lies the problem: A layman representing himself was
never told, and therefore did not understand, the factual predicate
necessary for the complex and terribly technical aspects of the
justification defense.
Illustrative of the non-compliance with the Faretta
requirements is the question by the trial court: ( A 1 - 9; A 115)
. . .Do you remember the questions that I asked you when we went through that Faretta hearing?
Response by the defendant:
"In what sense do you mean, do I remember them."
It is not sufficient that the prophylactic statement 'I1 hereby
waive my right to counseltf was uttered. As Faretta, supra, 8 2 0 ,
n. 15 states:
"We do not suggest that this right arises mechanically from a defendant's power ta waive the right to the assistance of counsel.Il
Applying that statement to the instant case. The principle of
Faretta has been violated--so have Hill's rights under the Sixth
Amendment:
"In short , the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it."
Faretta, 819.
This case fails to indicate the right in an adversary criminal
trial to make a defense as we know it.
ttEvsn t h e intelligent and educated laymen has small and sometimes no skill in the science of law. If charged with a crime....He lacks both the skill and knowledge adeuuately ta w ) reDare his defense, even though he has a potential one...If in any case, civil or criminal, state or federal court was arbitrarily to refuse to hear a party
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by counsel...It reasonably may be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sensell, [Emphasis added]
Faretta, supra, (832) citing Powell, supra, (69; 64) (Emphasis
added). That is precisely what's involved in the instant case.
Therefore, there has been no compliance with: It[T]he exercise
of a free and intellectual choice.lI Faretta, Id. 814. The choice
Was not ttcompetently and intelligentlyvv made Id.; it was not Ivan
intelligent and knowingIt waiver [Id. 8091; it was not knowing
and intelligent waivervt [Id. 812 N. 71; it was not a situation in
which a defendant lWoluntarily and intelligently elects" [a. 812 N. 71; it was not an election Itknowingly and intelligently" made
[Id. 8361. Hill did not possess the requisite Itcomprehension" of
Itthe nature or complexity of the case" so that he could not make
an vtintelligent and understanding waiver" [Fla. R. Crim. P.
3.111 (d) ] and, therefore Itviolating the Sixth Amendment right. It
"In short, the Amendment constitutionalizes the right in an
adversary criminal trial to make a defense as we know ittt.
[Faretta, supra 818; 25331. Therefore, if the admonition [Faretta,
Id. 820; 2523 N. 151 Itwe do not suggest that this right arises
mechanically from a defendant's power to waive the right of the
assistance of counsel!!, the law as set forth in Fasetta and by Fla.
R. Crim. P. 3.111(d) has been violated."
11. THE ERRORS COMMITTED DURING SELECTION MANDATE A NEW JURY SELECTION
Voir dire is restricted to those questions which are pertinent
a and proper for testing the capacity and competency of the juror,
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and which are neither designed nor likely to plant prejudicial
matter in juror's minds. State v. SkipDer, 2 2 8 Conn 610, 626
(1994). The State has violated this standard.
Certainly there would be no prohibition if either the State
or the defendant inquired of the members of the panel if any of
them had such strong beliefs, either in favor of, or against,
abortion, that they could not fairly decide the case. For example,
it would have been proper to ask a veniremen that if the evidence
might indicate that the decedents exited their vehicle to go into
the Ladies Center in order to perform abortions, would your belief
concerning abortion be so great that you could not set that belief
aside, and fairly decide the case solely upon the evidence
presented at trial? This is a case in which a religious belief
is involved, it's a case in which a fair question would involve the
ability of a perspective juror to set aside her or his beliefs on
abortion to fairly decide the case. For that reason, it was
improper to ask the question on church attendance. 95 ALR. 3rd
172, 179.
Jury selection is covered from pages 15 through 168 of the
transcript. Jury selection commenced at 9:45 p.m. (TR 17) and
terminated shortly before 3:OO p.m. (TR 168).
The local media coverage from the moment of the occurrence
through the entire trial was intense, commencing with the
underlying occurrence took place, and was still intense less than
two months later when jury selection process commenced. The court
instructed the media that perspective jurors will not be filmed,
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but anything else in t h e proceeding could be recorded.
The State inquired if there is any member of the panel who has
not heard about the case. Everyone (TR 4 5 ) , except three people
(TR 4 7 ) had. Despite this, not one question was asked concerning
the nature and extent of that exposure, what conclusions had been
reached, and whether those conclusions could be set aside, and the
verdict limited to evidence presented in the courtroom.
The judge suggested jury selection to be a procedure that:
What we could do and I'll be happy to receive any suggestions that anybody wants to make, as we could take the first 14, left, left or right, or right to left, row no. 1 or the last row, any way y'all wanted to do it. We can draw lots for red and go ahead and seat them over here in the jury box and let the voir dire begin as far as guessing is concerned. Does the State have any preference on this? (TR 2 4 )
The State requested that the Judge keep the entire group of 75
persons there and suggested:
that the first 14 jurors presumptably be the jury and then as each strike, if there are any strikes made---. (TR 2 4 )
That was agreed to by Hill. The State had a seating chart and the
questionnaires before it (TR 27) Hill had not seen the chart until
moments before the voir dire began (TR 27). This tactic was
manifestly unfair, as Hill should have exercised at least nine of
the twelve jurors.
The State told the panel that:
This is an extremely important case to the community, (TR 28),
and told the jury how important the jurors were because it was
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their courthouse; and without them, the system would be stopped
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dead in its tracks; that it's the highest service other than
service in wartime. The State admits that his comments sound: !la
little bit like flag waving.tt (TR 29).
The State then comments to the entire panel: (TR 65)
MR. MURRAY: Do all of you understand that the jury's only role is to determine the facts and apply them to the law and come back with a verdict, it is th e Judae's decision to imlsase a de cision of cruilt or decision of punishment. it is not the iurv's decision. Ok.. . (Emphasis added)
That is the Judge's decision,
That is an improper, clearly erroneous, prejudicial misstatement
which required a mistrial, as the law is clear that a jury must be
told, in a capital case, that the jury is the only entity to
determine whether a defendant is subject to the death penalty. It
is essential that the jury not be:
Led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.
Caldwell v. Mississigd, 472 US 320, 329, 105 5. Ct. 2633, 86 L.
Ed. 2d 231. It is essential that the jury fully be instructed and
understand that without the j u ry , and the iurv alone, making the
fatal determination, there can be no death penalty. The jury must
understand that the death penalty cannot be imposed unless they say
it should be imposed, and, as held in State v. Breton, 235 Conn
206, 2 4 9 (1995) and in commenting on the federal cases, the Court
held:
... That the Court is bound to impose a sentence in accordance with the jury's finding on mitigating and aggravating factors
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and, consequently, that the responsibilitv for decidinq whether the defendant will receive a sentence of death or life immisonment without the possibilitv of release rest with the iurv. (Emphasis added)
Breton, 235 Conn. at 2 4 9 .
The aforesaid erroneous comment by the State was such an egregious
error that Judge Bell even called the State to the bench and
commented: (TR 66)
You asked the question about it's going to be the Judge's decision to impose punishment in this case and it's going to be your decision to determine whether or not--guilt or innocence. I don't want any individual jurors in this particular case to have the understanding that they don't have a major, major advisory role at the punishment stage.
To that, the State responded:
1'11 make that abundantly clear. You're correct Your Honor. (TR 67)
This illustrates the point that a mistrial should have been
granted. At the very least the Court should have, in no uncertain
terms, corrected that prejudicial, blatant misrepresentation of the
law with appropriate sanctions.
Despite the admonition of the Court, panel member 8 4 who had
raised her hand stated, returning to the State's explanation:
Your explanation took care of it that you just gave us.
Followed by this question by the State:
MR. MURRAY: Ok, you won't have any difficulties with that? (TR 67)
In a semblance of compliance with the Court's order, much
later, the State commented to the panel that in a capital murder
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case, if the jury finds the defendant of first degree murder:
There is going to be a second proceeding. A second proceeding is not connected to the first proceeding except that is the same case... (TR 125)
With a comment concerning aggravating and mitigating circumstances,
the State added:
... You're going to look at the mitigating circumstances and you're going ta make a factual determination of whether one outweighs the other and if the aggravating circumstances outweigh the mitigating circumstances then the jury would come back with the recommendation of death.
Now that's a harsh thing, that's a harsh thing, it's a harsh thing for anybody. If you found on the other hand that the mitigating ... (TR 126)
Again, that does not satisfy the clear mandate of Caldwell, supra.
The State then says: (TR 127)
The advisory opinion that the jury comes back with carries great great weight with the Court, it is a very, very important aspect of this proceeding. It's not something that the Court takes lightly, the Court is required under our law to give great great weight to the jury's opinion in that particular regard.
That statement falls far short of the mandate that is the jury
alone which can determine whether a defendant can be put to death
or not. That is the law, and it is the question that must fairly
and clearly be presented to the jury. The jury must understand
that it is the jury, and the jury alone, which determines whether
or not a defendant lives or dies. The lack of a defense counsel
at this juncture of the proceedings was catastrophic.
The State, rather than obeying the order of Judge Bell to
clear up its prejudicial misstatement as to the function of the
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jury, proceeded to ask the panel:
How many of them, attend church on a regular basis, meaning one or more times a week. (TR 68)
This question should have been objected to and stricken. In
addition to disobeying Judge Bell, it has absolutely nothing to do
with the ability of a person to sit as a juror. What it does do-
and the clear intent of that question-is to flush out every person
who responds affirmatively because that juror would be against
Hill, because there is not a major religion which preaches the
killing of an abortionist.
Whether a person attends church weekly or more than a weekly
basis has nothing to do with that persons qualifications to sit as
a juror. That question should have not been permitted. For
example, People v. Velarde, (1980 Colo.) 616 P. 2d 104 prohibits
that inquiry in a case where a person is prosecuted f o r aggravated
robbery and conspiracy involving no religious issue. Neither does
the instant case. clearly, the State was seeking an unfair
advantage against the pro se defendant by removing from the jury
anvone who would in any way sympathize with Hill.
It is one thing to ask if a person has any religious beliefs
which might impact on that persons ability to sit as a juror in a
particular case, and depending on the response, to fdlow Up those
questions. It is quite another f o r the State to ascertain those
persons with a religious belief contrary to Hill's (particularly
in view of the granting of the State's Motion In Limine which
prohibited the justification defense). The State's follow up
33
a
question (whether this case has been discussed) simply compounds
the already fatal error.
The State also asked: (TR 92, 93)
Do any of you, for those of you who are students of the Bible, do any of you feel that there is Biblical teachings that support the use of force or violence against another person with whom you disagree?
Again, that is not a permissible question. It has nothing to do
with a person's ability to sit or not sit on a jury. The
justification defense was not permitted in the case, and the State
well knew that. It's motion was granted before the panel was
interrogated by the State. Anyone who answers that question in the
negative, is telling the State that there is never justification
for killing. The question should have been objected to, not
permitted, and a motion for mistrial should have been sustained.
(TR 92)
The next question is:
Do any of you think because somebody believes the Bible would support that, even though you don't agree with it but do any of you feel that because of some person's view of the Bible supports that, that that would excuse criminal conduct? (TR 93)
That was followed by:
Would all of you agree with me what we're really talking about goes to the heart of our society and whether or not we agree to live by a system of laws and a constitution. Would all of you agree with me on that? (TR 9 4 )
All of the perspective jurors nodded affirmatively. With that
first question, followed by the subsequent two questions, the State
effectively extracted the promise of jurors to find Hill guilty of
34
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the crimes charged. The justification defense was stricken, and
so was Hill's legal basis that he be found not guilty.
And the State premised its question on llcriminal conducttt (TR
9 3 ) . This is grounds for a mistrial, not able to be handled,
however, by a pro se defendant.
The State further asked whether any member of the panel did
"not have a firearm in your homett. (TR 9 4 )
with the ability to sit as a juror.
This has nothing to do
It had everything to do with
the State ferreting out any member of the panel who would be
sympathetic with Hill. The State then inquired:
Has anybody in here been touched, and when I say touched, I'm talking about yourself personally or your family, a close friend -- I'm not looking for any details, but have any of you folks been touched by the issue of abortion. (TR 78)
This is an objectionable question because anybody who has been
Vouched by abortion", is a person that would be sympathetic
towards abortion and its performers, and antagonistic towards Hill.
It is one thing to ask the panel that, if in the course of the
trial, it becomes apparent that abortion plays a part in the case,
would that fact, no matter which way one views abortion, preclude
you from sitting objectively on the case and decide it only on the
evidence presented in the court room. The latter is not what was
done here, and what was asked on page 78, and is improper.
The State then commented to the jury that:
A woman has a constitutional right, if she chooses to do so, to terminate a pregnancy within the first or second trimester. (TR 90)
a Again, the justification defense have been ruled out by the court,
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at the State's request. This comment by the State, therefore, is
totally inappropriate as no such issue was presented in the case.
It has absolutely nothing to do with the State's proof against
Hill. The State knew that Hill was going to put on any
justification defense because its motion had been granted. The
statement was prejudicial and improper, should have been objected
to, and never should have been asked.
The following page sets forth nine of the twelve jurors
selected.
Jurv
No. 618 TR 39 Knows Steve Banakas, Lt. with Pensacola P.D. No, it would not effect him, but he did have an interview with the Lt . Also went with his son to a courtroom and State's attorneys office caused him no concern. (TR 54)
No. 441 TR 101 Wife of 301
301, although a Bible student, that does not justify killing
(TR 931,
No. 30 TR 69 Case mentioned in church. Goes to church one or more times per week; Pastor mentioned the case, no effect. (Would have no effect on juror)
No. 575 TR 7 8 This woman has been touched by abortion but would have no difficulties
No. 312 TR 100 Knows No. 448's daughter. TR 59; 448's daughter's house bmkm into , satisfied with sheriff. TR 79 448 has been touched by abortion - her daqhter Same person No 312 knows TR 127
No. 552 TR 68 Attends church one or more times per week
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sitting
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No. 362 TR 94 Knows nothing about guns
No. 2 3 9 No. 146 TR 40 TR 75 Knows Lee Jennings Attends an Officer with the Pensacola P.D. who a week or was a close friend
church once
more. Case
UP - of nephew has mt Come
As can be seen from the aforesaid nine jurors, No. 618 not only had
an interview with Lt. Steve Banakas, but 618 also went with his son
to a courtroom and was not caused any concern by the State
Attorneys office. Certainly any lawyer representing a defendant
would inquire exhaustively of No, 618, and most probably exercise
a peremptory challenge.
Juror No. 30 falls into that category of people who go to
church once a week or more, the pastor mentioned the case, and it
would have no effect. Clearly, as with Juror Nos. 552 and 146 who
attend church one or more times per week, no organized religion
would state from the pulpit that one should shoot abortion
providers, therefore these three jurors also were predisposed
against Hill, and, again, no questions were asked by him of these
jurors.
Juror No. 312 knows No. 448's daughter, and 448's daughter's
house was broken into, satisfied with the sheriff, and 448 has been
touched by abortion-her daughter, the same person that No. 312
knows. As with Juror No. 575 a person who has been touched by
abortion, and would have no difficulty sitting, they are obviously
pro-abortion people, and Hill had a duty to delve into that with
them to see if it impacted on, indeed precluded, their ability to
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sit. The State, by asking the improper questions as aforesaid, has
taken unfair advantage of Hill. Juror No. 362 knows nothing about
guns, not interrogated by Hill, and a pro prosecution person
because of the shootings involved in this case. Juror No. 239
knows an officer with the Pensacola P. D., Lee Jennings, who was
a witness in the case, and who is a close friend of the juror's
nephew. Again, that had to be delved into by the defense, as the
State never inquired as to that as were none of the aforesaid nine.
For that reason, the lack of a Faretta hearings so tainted the
panel and the jury that a fair trial was impossible.
Another proof that Hill's Faretta waiver is invalid is shown
by Juror No. 546 who indicated that he knew a State's witness, Ms.
Pinch, who is his co-worker. When asked by the State if that would
make it more difficult for him to evaluate her testimony, 546
initially indicated it would. Because of that initial response,
the State moved to strike 546 far cause, claiming that 546 could
not fairly evaluate Ms. Pinch's testimony (TR 154).
In further response to the State's question if 546 would give
Pinch's testimony greater or lesser weight because of knowing her,
546's response is "no, sir" (TR 35). At a bench conference, when
546 changed his answer, because he said he was nervous, and said
that he would be able to evaluate her testimony, and it would not
be a problem f o r him, and, in response to the State's question:
Do you have a view of whether or not Ms. Pinch is an honest or truthful person?
The response was:
Yes, sir, she's truthful. (TR 155, 156)
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The Court asked Hill if he had any questions and he said he
did not. The State (TR 157) withdrew its challense f o r cause,
obviously because of the affirmative response that it got. Hill
said that he would not exercise a challenge on her (TR 157, 158).
That simply is not fair and proves that Faretta was not satisfied.
During the entire 150 pages of jury selection, Hill asked no
questions. He did not even know enough to ask the court to strike
Juror No. 65. whose daughter works for the State's Attorney Off ice.
[V. 1 P . 150 - 1541. Hill did not exercise any peremptory
challenges. [V. 1 P. 1641 It is clear that Hill had an absolute
duty to closely interrogate the nine jurors seated, and he should
have exercised his challenges for cause and or exercised a
peremptory challenge so that those nine would not have sat on the
case.
Like the defendant in Powell v. Alabama, 187 U.S. 45, 69
(1932), Hill:
... lacks both the skill and knowledge adequately to prepare his defense, even though we have a perfect one. He requires the guiding hand of counsel at every step of the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
T h i s is not a claim by the undersigned that a skilled lawyer
has the ability to read body language; a knowing meeting or non-
meeting of eyes: the ability to start selling one's case from the
addressing of the panel to the final argument in the case; the
nuances of ingratiating oneself to a juror; selling, by
implication, of the client to the panel: the hesitancy in a
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perspective jurors response; the age factor; the gender factor;
the race factor; and the like. The shortcoming here is basic.
There has been no meaningful effort to provide a defense as we know
it, and the lack of a meaningful Faretta hearing requires reversal.
Further impacting on the pro se representation in the instant
case is z a l v. StepDe, Warden, 968 Fd. 2d. 924, 933, citing
Griffith v. Florida, 548 So. 2d. 244 (1989) and Gilbert v. Florida,
487 So. 2d. 1185 (Fla. App. 4th Dist. 1986), in which a motive was
permitted to be articulated by a defendant even if not a lawful
defense. This holding is important both in the guilt and penalty
phase of the trial. So, too, the technicalities presented to Hill,
which he could not understand unless he were a lawyer.
That which might otherwise be criminal conduct, if committed
for the purpose of preventing an imminent greater harm, is a viable
defense. No factual foundation was presented by Hill, because the
Faretta hearings are silent as to the necessity of that foundation,
and therefore, his mental process never came into being, and it
should have. By the same token, the comment by the State that the
law of the land is that a woman may obtain an abortion through the
termination of the second trimester, simply is something made
without evidence, without expectation of evidence, and
unsupportable by the record-and it is highly prejudicial to Hill.
The jury selection in this case is in violation of the Rule
as set forth in Beruer v. United States, 295 U.S. 78, 88, 55 S. Ct.
629, 633, 79 L. Ed. 1349 (1935), that the interest of the State in
a criminal prosecution Ifis not that it shall win a case but that
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justice shall be donett. The State has violated that edict.
111. HILL'S NON-PARTICIPATION IN THE TRIAL OF THE CASE
This case involved 27 witnesses on the guilt phase of the
trial (TR 199, 3 9 8 ) , and 113 exhibits. Hill had no questions of
any of the witnesses (TR 214, 222, 229, 237, 256, 260, 268, 279,
287, 327, 333, 350, 357, 367, 396, 406, 411, 419, 424, 4 2 8 , 440,
451, 467, 471, 509, 549, and 563.)
There are several references in the transcript which, if Hill
were represented, objections would have been made and sustained.
For example, Vowels has stated that after Hill was up that he
stated:
At least there will be no more babies killed there today. (TR 287)
There is absolutely no question that Hill was handcuffed, under
arrest, and there is no indication that he was given any Miranda
warnings (TR 286, 287). Officer Holmes testified that he knew
Hill from previous meetings, protests, and a prior (prejudicial)
arrest of Mr. Hill on which they were involved he had seen Hill
with signs and posters, introducing 25A into evidence in which it
reads :
I1Execute, murderers, abortionists, accessories.1t
That was not anything that took place the day of the occurrence,
and should have been objected to (TR 306-308). Similarly, because
of no Miranda warning, Officer Holmes was permitted to testify as
to the llno innocent babies are going to be killed in that clinic
todayw1 (TR 327). Officer Ordonia again, with no connection to the
day in question, testified that he observed Hill more than a year
41
before walking with an empty gun holster, and Ordonia testified
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a
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that Hill was an advocate of violence as far as abortion was
concerned. So, too, he testified as to the "he stated no innocent
babies will die in that clinic today1*, again in violation of
Miranda (TR 330-332). The State utilized the signs used one year
before to indicate I t . . .one of these signs was prophetic in the
sense that it was a glimpse of what was going to happen on July 29,
1994. You are going to see photographs of the defendant carrying
the signs that say execute abortionists and accessories," (TR 179,
180), and the State articulates in its opening statement:
On July 29, 1994 the defendant showed clearly what his views and beliefs were, and that's what the evidence is going to show.
However, the State successfully moved, in limine, to prohibit any
such evidence to be offered by the defendant. Having excluded the
justification defense, and knowing that the defendant did not even
know how to proffer a factual basis for the introduction of such
a defense. The State improperly introduced this issue in its
opening statement. And, the State further articulated in its
opening statement (TR 196):
The defendant makes a statement at the time he's arrested [he had already been arrested]. He told the officers--it was overheard by a citizen also--1 know one thing, there will be no babies killed in that clinic today, which ladies and gentlemen, is a confession to two murders, one attempted murder and one shooting into an occupied vehicle.
This improper, introductory statement is based upon evidence the
State thinks is going to come in. The State's evidence never would
have been admitted had Hill been afforded a lawyer because of the
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Miranda failure to warn. The statement is grossly prejudicial
because it sets the tone even before the evidence starts Hill did
not make an opening statement.
A. THE J U R Y WAS IMPROPERLY INFLUENCED
and
The issue of the manikins which were left in the courtroom
placed adjacent to the room throughout the trial , with
rods in them simulating the course of the bullets and pellets
dominated the courtroom constantly impacting on the minds of the
jury. The Court's attention is directed to the colloquy between
the Court and the State (TR 635). The Court states:
What we are going to do then is be in recess. I would like, as I indicated to the jury, I want every piece of paper out of this room except exhibits that have been introduced into evidence. NOW, I might have missed it myself. I don't know whether I did or not. I think those manikins were not introduced into evidence. (Emphasis added).
"MR. MURRAY: That's correct, they have to qo." (TR 635; 585; 587)
The manikins about which the Court and the State speak were
never introduced into evidence, and, as aforesaid, stayed in the
case, in front of the jury from beginning to end. In fact, they
were next to the jury room doar. During each recess each juror had
to pass these life-sized manikins demonstrating the path of the
bullets. That would not have happened if Hill had been afforded
defense counsel, which he should have been because he did not
validly waive the presence of counsel.
The situation of the examination of Bruce Barrett (TR 677-
679), followed by Attorney Loveless's insightful colloquy (TR 679-
694), indicate why this case never should have been permitted to
43
go forward without a lawyer. ( A 121 - A 153)
I)
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The State's argument, and this was made after the State knew
that Hill had waived his opening argument at the conclusion of the
case, (TR 579) states an applicable part:
On the evidence that you have before you in this case and ladies and gentlemen, your common sense should tell you that this is an air tight case, air tight, overwhelming, unrebutted case. (TR 595)
Ladies and gentlemen, evervbodv in this courtroom, in this community, in the State of Florida is desendins w o n vou to uo back into that iurv room and return a wise and just verdict according to the law that the Court is going to give you. Go back and return verdicts as charged in the indictment and let your verdict speak the truth, guilty, guilty, guilty, guilty. Thank you very much. (TR
***
597, 598)
This is an improper argument because, in an unrepresented case, it
amounts to jury nullification. The issue is not that everybody in
this courtroom, everybody in the community, everybody in the State
of Florida is depending upon you to come back guilty. The issue
is on the evidence presented in the courtroom you should find the
defendant guilty. It amounts to jury nullification to threaten the
jury with everyone in the courtroom, everyone in the community, and
everyone in the State of Florida expecting guilt. Of course, Hill
had nothing to say. (TR 598).
Significantly, the foreperson is number 552, who attends
church once a week or more frequently. See page 34, ant@.
B. THE JURY WAS IMPROPERLY CHARGED
The State wrongfully stressed the issue of abortion-claiming
a that anyone who has anti-abortion sentiments somehow violates the
44
United States Constitution. The State knew that abortion was not
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an issue because its motion had been granted. Yet the State
permitted the trial court to charge:
A killing that is excusable or was committed by the use of justifiable deadly force is lawful. If you find that John Bayard Britton and James Herman Barrett were killed by Paul Jennings Hill, you will then consider the circumstances surrounding the killing and deciding if the killing was murder in the first degree or was murder in the secand degree or was murder in the third degree or was manslaughter or whether the killins was excusable or resulted from iustifiable use of deadlv force. The killins of a human
i s justifiable homicide, and lawful if attempt
beinq necessarily done while resistinq an to mu rder or to commit a felony UD on the defendant or to commit a falmy in any dwellinu house in which the defendan t was at the time of the killinq. (Emphasis added)
The killing of a human being is excusable, and, therefore, lawful under any one of the following three circumstances. No. 1 when the killing is committed by accident and misfortune in doing any lawful act by lawful means with the usual ordinary caution without any unlawful intent or No. 2 when the killing occurred by accident or misfortunately in a heat of passion upon any sudden and sufficient provaction or No. 3 , when the killing is committed by accident and as fortunately resulting from a sudden combat. If a dangerous weapon is not used and the killing is not done in a cruel or unusual manner. (TR 600, 601)
Because the justification defense was precluded and because the
Faretta hearings had not yielded a knawing, voluntary, and
intelligently waiver, the charge by the court was without anv basis
in evidence. This proved to be tragically detrimental to Hill.
The jury had to wonder why Hill, if this were the law, did not
offer any evidence of it.
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This is made more clear when the jury had a written question
which the court declined to answer. The lack of a lawyer during
this portion of the charge is fatal. Further, the justification
defense also applies to the taking of a life to prevent a greater
harm, and the Court failed to charge accordingly.
The same error in the charge is reiterated by the Court in
commenting attempted first degree murder (TR 608, 609). Because
he didn't understand the rules of evidence, Hill did not object to
a charge on those statements which were inadmissible as to what he
did. Of course, Hill had no objection to the charge (TR 634).
IV. THE ERRORS COMMITTED AT TRIAL RESULTED IN A VIOLATION OF HILL'S RIGHTS UNDER THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. THEREFORE, THE APPEAL MUST BE SUSTAINED AND A NEW TRIAL ORLlERED
Hill did not take the stand. The first time that Hill was
told that he had to make a legal decision on whether the court
should charge the jury that it should not make any adverse
inference from Hill's failure to testify, or whether the court
should not comment at all on Hill's failure to testify was when
the State (TR 474), commented to the court:
These are the standard jury instructions. They do include the instruction pertaining to the defendant not testifying which, of course, are only given if that's the wish of the defendant and he can discuss that with his attorney.
The court then offers to give Hill the chance to take a break
Twenty and talk to standby counsel to see what Hill's desire is.
minutes later (TR 476, 477) Hill states:
I think the safest thing to do would be to omit that entire section under defendant not testifying.
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Standby counsel was put in an untenable situation. They could
not plan the case, yet they had to give instant alternatives to a
person who did not want those persons as counsel; again, Faretta
has been violated in a critical portion of the trial.
This is particularly unfair because it immediately follows
Hill's 67 word comment to the jury which, as hereinbefore stated,
was terribly prejudicial to Hill. Mast federal courts have
generally held that giving the protective instruction, even over
the defendant's objection, is not a constitutional violation.
Lakeside v. Oreqon, 435 U.S. 333, 336. Hill thought, up until jury
selection, that he was going to testify and explain his
justification defense. After learning that he was prohibited from
so testifying about the justification defense Hill had to make the
legal determination that the protective instruction should, or
should not, be given to the jury. He had twenty minutes to
determine this issue which is an insufficient time f o r a lawyer,
let alone a layperson with no legal experience in this life and
death issue. As held in Lakeside v. Oreaon, Id., 341:
In an adversary system of criminal justice there is no right more essential than the right to the assistance of counsel. But that right has never been understood to confer upon defense counsel the power to veto the holy permissible actions of the trial judge. It is the iudae, not counsel, who has the ultimate resmnsibilitv for the conduct of a fair and lawful trial. (Emphasis added)
This case was in an adversary system of criminal justice.
Again, the failure to provide counsel for Hill is fatal. The
comment in Carter v. Kentuckv, 450 U.S. 288, 302:
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The penalty was exacted in Griffin by adverse comment on the defendant's silence: the penalty may be just as severe when there is no adverse comment, but when the jury is left to roam at larue with only its untutored instincts to quide it, to draw from the defendant's silence broad inferences of quilt. (Emphasis added)
Certainly, when combined with the inept performance of Hill,
letting t h e jury roam does not afford a defense a5 we know it.
When this is combined with the State's comment, in commenting
on Hill's mental state that he:
Executed a person whom he did not agree with (TR 590); he disagreed with the position of those individuals (TR 93); and this is an airtight ... unrebutted case (TR 9 5 ) ,
that is making comments which are Itfairly susceptiblett of being
interpreted as comments on defendant's silence and are reversible
Unless the State can prove beyond a reasonable doubt that error did
not contribute to the verdict. Dixon v. State, 627 So. 2d 19 (Fla.
Dist. Ct. App. 1993). Further, (TR 180) the opening argument of
the State commenting about Hill's activities one year before the
accident impermissibly comments on his state of mind, thereby being
"fairly susceptiblev1 as a comment on the defendant's silence. When
the State commented in its opening statement "that the defendant
made a statement at the time he was arrested", followed by that
statement is a "confession to two murders, one attempted murder,
and one shooting into an unoccupied vehicle". (TR 196) That
statement is a comment on the defendant's silence, and is
reversible error. When the State comments, in its closing argument
(TR 582):
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Dr. John Britton is dead. There is nothing contesting that fact, that's a proven hardrock solid fact and the same thing with Col. Barrett. They are both dead. No. 2, the death was caused by the criminal act of Paul J. Hill. Overwhelming evidence has come in to you Over the past three days as to who is responsible for the carnage that was rendered.. .the evidence conclusively shows that this act was reflected upon and thought about, planned ...
is another impermissible comment on the silence of Hill. On the
comment (TR 584) "bear in mind that the case has been presented
to you and all the evidence and all the testimony that's come to
you, is unrebutted, it's overwhelming and is conclusive.tt Again,
impermissible comments on the silence of Hill, followed by (TR
585) :
overwhelming, conclusive proof that the defendant in this case, seated right over at that table there, you have been looking at him for three days, is the person ...
is another example of the impermissible comment on the failure to
testify. When added to "there will be no more babies killed there
todaytt (TR 287, 327, 330-332), the rights against self-
incrimination have been violated.
V. FLORIDA STATUTES PROVIDE THAT ONE MAY USE FORCE, EVEN DEADLY FORCE, IN DEFENSE OF ANOTHER. THE REFUSAL OF THE TRIAL COURT TO A U O W THIS DEFENSE CONSTITUTES A FATAL ERROR THAT WWDATES A NEW TRIAL.
A person. .is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.
Fla. Stat. Ann. 5772.012. See also Jack Lowery, Jr., A Statutory
Studv of Self -Defense and Defe nse of Others as an Excuse f o r
Rnmicide. 5 U. Fla. L. Rev. 58 (1952).
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Others as an Excuse for Homicide, 5 U. Fla. L. Rev. 58 (1952).
That **Defense of Another" is a lawful defense is self-
evident. The trial court should not have precluded its
presentation. Even under the most convoluted logic, Hill still
should have been allowed to offer it. Indeed, the defendant must
be permitted to fully articulate his motive even if it does not
constitute a lawful defense, Zal v. Stemx, Warden, 968 F.2d 924,
933, citina Griffith v. Florida, 548 So.2d 244 (1989) and Gilbert
v. Florida, 487 So.2d 1185 (Fla. App. 4th Dist. 1986).
Hill sought at every reasonable opportunity to present this
statutory defense (e.g., Tr. 566, 665, 720-725). Hill's Memorandum
in Opposition to the State's Motion in Limine (at R. 117-200) is
incorporated here by reference. Although the State precluded Hill
from presenting any evidence of his own state of mind, the
government's arguments were fraught with mischaracterizations of
Hill's mental state (e.g., *lexecute[d] a person whom he did not
agree with,** Tr. 590; !*he disagreed with the position of those
three individuals,I* Tr. 593; "this is an airtight ... unrebutted case.I1 Tr. 595) . Whether Hill's actions were, in fact, reasonable
is a question f o r the jury. Throughaut the trial, however, the
jury was only allowed to hear one side of the argument: from that,
they were unfairly prejudiced from the outset.
The statute provides that one may use deadly force to protect
himself or *lanother. *I Fla. Stat" Ann. s776.012. The statute does
not, however, define who is included by that term. Clearly the
word ffanotherl* is susceptible to multiple constructions. Florida
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law provides that "when the language is susceptible of differing
constructions, it shall be construed most favorably to the
accused.tt Fla. Stat. Ann. 5775.021 (1). tlAnother" must be
construed in a manner mast favorable to Hill. The trial court had
an obliuation to allow Hill to present this as his defense.
By denying Hill access to this statutory defense, the trial
court invaded the province of the jury. Long ago, this Honorable
Court held that it is the province of the court to state what the
rule of law is as to the €acts, and the province of the jury to
determine whether such facts exist in the particular case. Gladden
V. State, 12 Fla. 562, 576 (1869). More recently, the Florida
Court of Appeals held that a trial court fundamentally erred in
omitting elements of defense of others in a self-defense
instruction. In an startlingly applicable holding, the appellate
court reached this conclusion even though the defense (as in Hill's
case) offered no objection to the charge as given because the error
went to the "essence and entirety of the defense." Dawson v.
State. 597 So. 2d 924, 925 (Fla. Dist. Ct. App. 1992) (emphasis
added). As Hill presented to the trial court:
The thread between m d den and Dawson is clear, continuous and often repeated. In a prosecution f o r murder, the jury must determine if the accused is free from fault in bringing on the difficulty; if reasonable grounds for the killing exist; if the harm is imminent; and whether the homicide is justified. Although what constitutes justifiable homicide is a matter of law, the jury determines the existence of the facts in a particular case. The trier of fact is to decide the question af defense of another in a murder prosecution. The jury is the last line of defense against tyranny. Because the
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facts of Paul Hill's case satisfy this threshold, he must be allowed to present his defense to the jury.
Transcript of Record on Appeal at141 (internal citations omitted).
Neither can it be correctly asserted that allowing Hill to
present this defense to the jury would violate the Constitution as
articulated in Roe v. Wade, 410 U.S. 113 (1973), or Planned
Parenthood of Southeastern Pennsylvania v. Casev, U.S. I
112 S . Ct. 2791 (1992). Despite the state's assertions during voir
dire (Tr. 90-93) and closing arguments (Tr. 590) to the cantrary,
the thrust of these cases is that the states may not enact
regulations that directly create an Ilundue burden" on a woman's
access to abortion.
Hill is not a state actor. The Florida statutory provision
for an affirmative defense is not a regulation at all. Regulations
defense is a restraint on the state. The purpose of the self-
defense statute is to protect defendants, like Hill, from an unjust
prosecution.
Allowing Hill to use the defense to which he is statutorily
entitled does not conflict with either of these cases, because
neither case is implicated by this case. Denying him access to the
protection of the law does, however, violates his rights under both
the U.S. and Florida State Constitutions.
Obviously, Hill's inability to provide a factual predicate f o r
this defense arises directly from an inadequate Faretta inquiry.
a Notwithstanding this fatal error, the granting of the State's
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motion precluding his statutory defense denies Hill his basic
constitutional rights. This alone provides an adequate basis f o r
sustaining the appeal and remanding the case f o r a new trial.
VI. BECAUSE OF THE ERRORS COMMITTED DURING THE GUILT PHASE OF THE TRIAL, THE DEaTH PENALTY CANNOT BE LEGITIMATELY APPLIED.
Hill has been sentenced to death. A s discussed, supra, the
trail was fraught with constitutional error. Indeed, it was a
llcomplete travesty. 11
Both the State and the trial court placed great reliance on
the aggravating factor of !'cold, calculated and premeditated remedy
without pretense of moral and legal justification."
Mr. Hill's justification evidence is admissible under two,
independent, free-standing theories. First, the evidence would
have served as direct rebuttal to the prosecutor's argument to the
jury, and the trial judge's ultimate finding, that the homicides
in this case were I1cold calculated and premeditated, without
pretense of legal or moral justif ication.l1 Second, exclusion of
the evidence deprived Mr. Hill of his right to place before the
sentencer relevant evidence in mitigation of punishment.
SkiDper v. South Carolina cite, 476 U.S. 1 (1986), provides
the bases for both propositions asserted by Mr. Hill. In S k i m e r ,
following t h e state's introduction of evidence in aggravation of
the offense, petitioner presented as mitigating evidence his own
testimony and that of his former wife, his mother, his sister, and
his grandmother. He then sought to introduce testimony of two
jailers and a '!regular visitor" to the effect that he had made Ira
good adjustmentt1 during the seven and a half months he had spent
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in jail between his arrest and trial. The trial court ruled such
evidence irrelevant, and the United States Supreme Court reversed
on two grounds. First, the Court held that the trial court's
exclusion from the sentencing hearing of the testimony of the
jailers and the visitor denied Mr. Skipper his right to place
before the sentencing jury all relevant evidence in mitigation of
punishment under the principles of Lockett v. Ohio, 438 U . S . 586
and Eddinas v. Oklahoma, 455 U . S . 104 (1982).
The anly question before us is whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment. It can hardly be disputed that it did. The state does not contest that the witnesses petitioner attempted to place on the stand would testify that petitioner had been a well behaved and well adjusted prisoner, nor does the state dispute that the jury could have found favorable inferences from his testimony regarding petitioner's character and his probable future conduct if he was sentenced to life in prison. Although it is true that any such inferences would not relate specifically to petitioner's culpability forthe crime he committed, there is no question that such inferences would be mitigating in the sense that they might serve as a basis for sentence less than death.
The SkiDDes Court further noted in a footnote that Itthe
relevance of evidence of proper future conduct in prison as a
factor in aggravation or mitigation of an offense is underscored
in this particular case by the prosecutor's closing argument, which
urged the jury to return a sentence of death in part because
petitioner could not be trusted to behave if he were simply
returned to prison. Where the prosecution specifically relies on
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a prediction of future dangerousness in asking for the death
penalty, it is not only the rule of Lockett and Eddincls that
requires that the defendant be afforded an opportunity to introduce
evidence on this point; it is also the elemental due process
requirement that a defendant not be sentenced to death Ifon the
basis of information which he had no opportunity to deny or
explain.Il SkiDDer, 476 U.S. at 5 (quoting Gardner v. Florida, 430
U . S . 349, 369 (1977)).
One may disagree with Paul Hill. One may even conclude that
As demonstrated by the memorandum what he did was reprehensible.
of law that he filed (R 117-200), it cannot be said that he acted
without legal justification. Neither can it be said that he had
no moral justification.
"The Bible over 40 times states that human life begins with conception."
M. OLASKY, ABORTION RIGHTS: A SOCIAL HISTORY OF ABORTION IN
AMERICA, 33 (1993); SEE ALSO J. DAVIS, ABORTION AND THE CHRISTIAN
(1984); H. Brown. What t h e Supreme Court Didn't Know, 1975 HUMAN
LIFE REVIEW 5; J. Montgomery, The Fetus and Personhood, 1975 HUMAN
LIFE REVIEW 41. His Holiness John Paul I1 writes that ilFor man,
the right to life is a fundamental right. And yet, a part of
contemporary culture has wanted t o deny that right, turning it into
an "uncomfortable" right, one that has to be defended. But these
is no other right that so closely affects the very existence of the
person! The right to life means the right to be born and then
continue to live until one's natural end: 'as long as I live, I
have the right to live."! HIS HOLINESS JOHN PAUL 11, CROSSING THE
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THRESHOLD OF HOPE, 205 (1994).
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Ronald Dworkin has written that Ifabortion, which means
deliberately killing a person out of kindness, are both choices for
death. The first chooses death before life in earnest has
begun...!' R. DWORKIN, LIFE'S DOMAIN: AN ARGUMENT ABOUT ABORTION,
EUTHANASIA AND INDIVIDUAL FREEDOM 3 (1993). The Ilwar between anti-
abortion groups and their opponents is America's new version of the
terrible 17th century European civil wars of religion.
Opposing armies marched down streets or packed themselves into
protests at abortion clinics, courthouses, and the White house,
screaming at and spitting on and loathing one another. Abortion
is tearing America apart. It is also distorting its politics, and
confounding its constitutional law." u. at 4 . Reasonable sounding
proposals that the abortion issue should somehow be resolved by compromise seen unrealistic. For the proposals do not challenge the standard view of the character of the abortion argument -- the standard view of what the argument is about -- according to which the issue turns on what answer is given to a polarizing question. Is a fetus a helpless unborn child with rights and interests of its own from the moment of conception? If so, then permitting abortion is permitting murder, and having abortion is worse than abandoning an inconvenient infant to die . . . . Self respecting people who give opposite answers to the question of whether a fetus is a person can no more compromise, or agree to live together allowing others to make their own decisions, than people can compromise about slavery or apartheid or rape. For someone who believes that abortion violates a person's most basic interest and most previous rights, the call for tolerance or campromise is like a call for people to make up their own minds about rape, or like a plea for second class citizenship, rather than full slavery or full equality, as a f a i r compromise to the racial issue.
- Id. at 9-10.
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There is a long tradition in American society of individuals
and groups resisting enforcement of the state's law and asserting
obedience to higher moral authority as the reason for their
opposition. Such resistive activity is generally labeled Ilcivil
disobediencett and discussion has centered on whether or not it is
Iljustifiable." % W. STRINGFELLO, FREE IN OBEDIENCE (1964); M.L.
King, Letter From Birmincrham Citv Jail, in A TESTAMENT OF HOPE-
THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 289 (J.
Washington ed. 1986); H.D. Thoreau, Civil Disobedience, in WALDEN
AND OTHER WRITINGS 85 (J. Kautch ed. 1962) : SWORDS INTO PLOWSHARES:
NONVIOLENT DIRECT ACTION FOR DISARMAMENT (A. Laffin & A . Montgomery
ed. 1987) [hereinafter SWORDS INTO PLOWSHARES].
Hill believes that he has the spiritual obligation of
witnessing to the absoluteness of God in a secular state which
claims no higher power than its own aspiration. Civil resistance
is then not only a morally acceptable form of witness, it may be
required of the Christian community.
While resistance is permissible--and perhaps even required-
-the Christian community may be obliged to speak Q the state, but
it cannot speak for the state.
Because the Christian community is one which, when true ta its
own tradition, reasons differently from many secular communities,
it may appear nontraditional and strange to those who are
unfamiliar with that community. This particular community discerns
what questions are important when it looks at the nature of
obligation.
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It is very difficult f o r the secular world to understand how
religious communities themselves come to decisions. On the one
hand, detractors of civil resistance often talk of the danger of
anarchy and cannot fathom that the community is not seeking power,
but merely to be faithful. Even among those who support the claim
of resisting communities, there is often a grave misunderstanding
of what the community is about. Many see the goal as replacing an
existing order instead of transformation.
Most discussions begin by phrasing the issue as whether one
has an obligation to obey the state's law. But then one must ask
what is the law, the enforcement of which is being resisted? Those
questions, in turn, require that consideration be given to the
nature of the moral obligation which the resisting group asserts
as the controlling authority of its life as a community. The
resisting community's own requirement of obedience to moral
precepts must be considered in light of the demand for obedience
asserted by the state.
If, on the other hand, the inquiry begins with an assumption
that the resisting group has an important internal obligation, then
the next series of questions would be quite different. It wauld
become necessary to articulate the nature of that internal
obligation and to determine what obedience to the authority of the
community entails. Finally, the resisting entity would have to
confront the state and distinguish between those requirements for
civil disobedience which honor the authority of the tradition and
those which betray authority. Tom Shaffer, Jurismudence in Lisht
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of the Hebraic Faith, 1 NOTRE DAME J. OF L., ETHICS AND PUB. POL'Y
77, 86-87 (1984). Haw the analysis proceeds depends to a large
extent on where one stands.
Paul Hill is part of a community which, in the course of the
last two thousand years, has often found itself at odds with the
official policies of the state. That community is the Christian
church. He has spent a good deal of time with smaller groups of
Christians who challenge state authority. He has friends who are
members of self-described Christian communities of resistance to
whom obedience means not to let other institutions (i .e. I the law)
claim our primary obligation and subvert that obligation to our
neighbor. That means the Christian community must be respectful
but wary of t h e claims of the law.
The major, and perhaps the only, justification for the law is
to create those structures in which the obligation to love one's
neighbor can be nourished. Opening our hearts to the neighbor
begins the redemption of the world. The political and spiritual
obligation of the Christian Church is to create a society where it
is easy for people to be good. In the likely event that the law
gets in the way of or compromises that obligation to the neighbor,
then the Christian community needs to decide how and whether it
will confront the law.
While Hill's narrative draws heavily on the experience of
attempting to sort out what it means to be a neighbor in the pain
and bitterness of abortion, the basic process of discernment is not
limited to that situation. It is as old as the church itself.
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Yet the law depends on the daily exercise of drawing lines.
Whether shooting Dr. Britton and his escort was the right thing to
do is not the question. The only legal question is whether Paul's
deep and abiding beliefs--which are the sole basis fo r his acts-
-gave his actions at minimum a "pretense" of moral or legal
justification.
CONCLUSION
For the reasons presented in this intial brief, Appellant,
Paul Jennings Will, asks this Court to sustain the appeal and
remand this case to the trial court with an order f o r a new trial.
RESPECTFULLY SUBMITTED,
12 Trumwl Street New Haven, Connecticut 06511 (203)-865-2133
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Initial Brief
of Appellant has been furnished via U.S. Mail to Richard Martell,
Assistant Attorney General, Criminal Appeals Division, The Capitol,
Plaza Level, Tallahassee, Florida, 32301; and a copy mailed to
Appellant, Mr. Paul J. Hill,#459364, Florida State Prison, P.O. Box
747, R-2-N-17, Starke, Florida 32091 on this 2nd day of May, 1996.
RESPECTFULLY SUBMITTED,
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Pro Had Vice 12 Trumbull Street New Haven, Connecticut 06511 (203)-865-2133
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